SAIGH v. MONTEITH, Chief Justice, et al., 215 S.W.2d 610

HICKMAN, Chief Justice. Relator seeks a writ of mandamus to compel the Honorable Court of Civil Appeals for the First Supreme Judicial District at Galveston to certify to this court a question of law arising on the hearing of a plea of privilege filed by relator to be sued in Bexar County, the county of his residence.

The suit out of which this proceeding grows was filed by respondent Anderson Brothers Corporation against relator in one of the district courts of Harris County upon two written contracts, the first dated March 14, 1944, and the second dated August 8, 1945, under the terms of which respondents’ predecessor in title leased to the relator certain equipment which was used by relator in .the construction of a pipe line. Respondent seeks to maintain venue in Harris County under amended Subdivision 5 of

Article 1995, R.C. S., Vernon’s Ann.Civ.St. art. 1995, subd. 5, quoted hereinafter. In a non jury trial of the privilege issue the plea was overruled, and that order was affirmed by the Court of Civil Appeals. Saigh v. Anderson Bros. Corp., 211 S.W.2d 357. As noted above, respondent declared upon two written contracts. In its controverting plea it sought to maintain venue where laid under the terms of each of these contracts. No findings of facts or conclusions of law were requested or filed, and it cannot, therefore, be determined upon which contract, if not upon both, the trial court’s order was based.

The Court of Civil Appeals did not consider the first contract, but affirmed the case upon its construction of the terms of the second contract. The particular provision of the contract of August 8, 1945, which in the opinion of the Court of Civil Appeals fixes venue in Harris County, reads as follows: “All payments to be made under this contract by Lessee to Lessor shall be made to said Second National Bank of Houston for the account of Lessor.” It was stipulated that the corporate name of the bank is Second National Bank of Houston.

Notwithstanding this the Court of Civil Appeals held that “Houston,” as used in the corporate name is a “place name”; that its signification, would be identical whether it were “Second National Bank at Houston” or “Second National Bank in Houston”; and that the contract would have gained nothing in clarity of meaning had it stated that the payments were to be made to the Second National Bank of Houston, in Houston. We are not in agreement with these conclusions. Prior to the amendment of Subdivision 5 of

Article 1995 by the Acts of 1935, 44th Legislature, p. 503, oh. 213,

Section 1, it read as follows: “If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile.” By the-amendment it was made to read as follows: “If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such zuriting, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” (The italics indicate the provisions added by the amendment.) The intention of the Legislature in adding this amendment is obvious.

Under Subsection 5 as it stood at the time of the amendment one might become a party .to a contract which by implication obligated him to perform in a particular county, although the contract did not expressly name the county of performance and obligate the defendant to perform therein. By amendment the language of the subdivision was made so plain as to admit of no construction that would fix venue by implication. In order to sustain venue in Harris County in this case the contract must have expressly-named that county or some definite place therein where relator was obligated to perform.

This contract does not meet that test. It provides merely that the relator was to make payments to the named bank. Where such payments were to be made is not covered by the express language of the contract. In effect, the holding of the Court of Civil Appeals is that the mere designation by name of-a mortgagee or payee in an instrument, if that name includes that of a place, should be construed as a promise of performance at the residence of the mortgagee or payee. By such holding, in our opinion, the court came into conflict with the holding of the Court of Civil Appeals in Pack v.

Dittlinger & Dare, 136 S.W.2d 636. We have concluded that because of that conflict this court has jurisdiction to grant the writ of mandamus. The case is clearly distinguishable from Heid Bros., Inc., v. Smiley, Tex.Civ.App., 144 S.W.2d 952. In that case the contract provided that payments should be made upon delivery of bills of lading “to the First National Bank of Paris, in Paris, Texas.” That contract expressly names the place of performance to be “in Paris, Texas,” and courts judicially know that Paris is the county seat of Lamar County.

Our conclusion is that the Court of Civil Appeals erred in holding that the contract of August 8, 1945, fixed the venue of the suit in Harris County under amended Subdivision 5 of

Article 1995, R.C.S., as against the plea of relator to be sued in the county of his residence. From the above holding a very interesting question of procedure arises. The Court of Civil Appeals has not considered the question of whether venue could be retained in Harris County under the first contract, its view being that venue was fixed in that county under the second contract, and that, therefore, it was unnecessary to consider whether the same result might have been reached from a consideration of the first contract.

The situation confronting us is this: Should we compel by mandamus the certification of the question of the correctness.of the holding of the Court of Civil Appeals on the question decided by it, the court might then consider the first contract, dated March 14, 1944, and affirm the case on the ground that venue could be maintained in Harris County under it. The result would be either that our decision would be of no effect or else relator would be compelled to seek relief by a second mandamus proceeding. Either result violates the spirit and purposes of our system of practice and rules of civil procedure.

In Uvalde Rock Asphalt Company v. Hightower, 135 Tex. 410, 144 S.W.2d 533, the Court of Civil Appeals certified certain questions of law to this court, 'disclosing in its certificate that there were certain other questions presented in the case which were not certified and which might be determinative of the judgment which that court would render. This court dismissed the certificate on the ground that our answers would furnish no basis for an adjudication of the issues involved.

Were this a certificate from the -Court of Civil Appeals in which it made known to this court that it withheld a ruling on the question of whether the venue could be sustained under the first contract, then under the authority of the case just cited the certificate would be dismissed. But -to deny a writ of mandamus -to relator on that ground would be manifestly unjust to him.

He is not to be prejudiced by the failure of the Court of Civil Appeals to pass on all questions presented, and to hold that he is not entitled to his 'writ merely because the Court of Civil Appeals fails to pass on one of the questions would be -tantamount to a holding that he has no remedy at all.

To compel the certification of the question decided by the Court of Civil Appeals and then refer the case back to that court for its consideration of the question which it did not decide, and, in the event its decision should be adverse to relator, entertain a second mandamus in the same suit, would be to try a case piecemeal and encourage a multiplicity of suits. Faced with this situation, we have decided that we are authorized -to consider in this proceeding the question of whether venue can be maintained in Harris County under the terms of the first contract.

The rule has long been established in this court that circumstances may exist which will warrant the court in reversing judgments as between nonappealing parties. Under ordinary circumstances the court would have no jurisdiction to determine a controversy between parties not before it, but in a case where the court sustains an assignment of error, and the petitioner can be given full and effective relief in no other way than by a reversal of the judgment between nonappealing parties, then such reversal will be ordered. Hamilton & Co. v. Prescott, 73 Tex. 565, 11 S.W. 548; Thompson v.

Kelley, 100 Tex. 536, 101 S.W. 1074; Reeves & Lester v. McCracken, 103 Tex. 416, 128 S.W. 895; American Indemnity Co. v. Martin, 126 Tex. 73, 84 S.W.2d 697. Courts are not powerless to make their decrees effective, and in order to do so they may consider questions under given facts which under general rules they would have no authority to consider. This case calls for an application of that principle. There -is probably more ground for its application in mandamus proceedings than in ordinary appeals.

If venue is properly to be sustained under the terms of the first contract, then the writ of mandamus should be denied. We cannot determine whether to issue the writ without considering that question. If, on the other hand, venue cannot be maintained under the terms of the first contract, then the writ should issue in this proceeding and the case be ordered to be transferred to Bexar County for trial on its merits. We have examined the first contract, being the one dated March 14, 1944, and it is very evident to our minds that venue cannot be maintained in Harris County upon it.

The contract provides that payments thereunder are to be made “to the said The National Bank of Commerce of Tulsa.” The contract in one of its provisions makes relator responsible for all equipment and provides that same is to be delivered back to second party’s warehouse. The location of that warehouse is. not stated. At another place it is provided that the cost of transportation to the job site or to Houston will be borne by petitioner, and that the cost of transportation to the warehouse of the second party at Houston, Texas, will be borne by relator.

There is no express provision for the performance of the obligations of the contract in Houston. Only by implications and a somewhat strained construction can that obligation be read into the contract. As held above under the amendment of 1935, venue cannot be fixed by implication or doubtful constructions. We assume that the Court of Civil Appeals will of its own accord conform its ruling and decision to those- of this court, but in the event it should not do so the Clerk will issue the appropriate writ. Texas Rules of Civil Procedure, no. 475. SMEDLEY, HART, and GARWOOD, JJ., dissent.